Punjab-Haryana High Court
Ghanvir Singh vs State Of Punjab And Another on 30 July, 2012
Author: Sabina
Bench: Sabina
CRM No.28723 of 2010 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM No.28723 of 2010 (O&M)
Date of decision: 30.7.2012
Ghanvir Singh
......Petitioner
Versus
State of Punjab and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Mansur Ali, Advocate,
for the petitioner.
Mr.Amandeep Singh Rai, DAG, Punjab.
****
SABINA, J.
This is a petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing FIR No. 254 dated 29.10.2006 registered under Clause 19 (1) (a) of Fertilizer Control Order, 1985 read with Section 12A of the Essential Commodities Act, 1955, Police station City Rajpura District Patiala (Annexure P-1) and all the consequential proceedings arising therefrom.
Learned counsel for the petitioner has submitted that the petitioner was merely supplying the fertilizer prepared by the manufacturer. The samples in question were drawn from the stitched bags. In case any lapse had been committed, the manufacturer was liable for the same.
CRM No.28723 of 2010 (O&M) 2
Learned State counsel, on the other hand, has submitted that the trial in the present case had commenced and hence, the petition was liable to be dismissed.
After hearing learned counsel for the petitioner as well as learned State counsel, I am of the opinion that the present petition deserves to be allowed.
FIR in question was registered on the basis of the complaint submitted by Chief Agricultural Officer.
Prosecution case, in brief, was that the Fertilizer Inspector had checked the premises of M/s Aggarwal Trading Company, Shop No.63, New Grain Market, Rajpura on 18.10.2004. At the time of inspection 498 B/s DAP (N 18% P205 46%) manufactured by Oswal Chemical and Fertilizer Ltd. Paradeep, Orissa and marketed by Indian Potash Limited, 727, Annamali Chennai were lying with the firm for sale. At random the fertilizer inspector selected 5 bags of DAP (IPL brand) and about 1.5 kgs material was drawn from the selected bags and samples were prepared. One sealed sample was sent for chemical analysis. As per the report of the analyst, the sample was not in accordance with the specifications and failed in total N, Neutral Ammonium Citrate soluble P205 and water soluble.
Annexure P-2 is the form 'J' filled in by the fertilizer inspector at the time of drawn of the sample. A perusal of the same reveals that the samples had been drawn from stitched bags. In the written statement filed by the State also, in para 2 of the preliminary CRM No.28723 of 2010 (O&M) 3 submissions, it has been admitted that the samples were drawn from machine stitched bags.
Thus, in the present case, admittedly, the sample in question had been drawn from stitched bags. The fertilizer was being manufactured by M/s Oswal Chemical and Fertilizer Ltd. The same was being supplied by M/s Indian Potash Ltd. after it was received from the manufacturer.
Section 30(3) of the Insecticides Act, 1968 (the Act for short) reads as under :-
" 30. Defences which may or may not be allowed in prosecutions under this Act.-
(3) A person not being an importer or a manufacturer of an insecticide or his agent for the distribution thereof, shall not be liable for a contravention of any provision of this Act, if he proves-
(a) that he acquired the insecticide from an importer or a duly licensed manufacturer, distributor or dealer thereof;
(b) that he did not know and could not, with reasonable diligence, have ascertained that the insecticide in any way contravened any provision of this Act; and
(c) that the insecticide, while in his possession, was properly stored and remained in the same state as when he acquired it."
A perusal of Section 30(3) of the Act shows that the petitioner is entitled to the protection under the same, in case, the CRM No.28723 of 2010 (O&M) 4 sample is taken from the sealed container and the seal had not been tampered with when the same was recovered from the shop. However, the protection would not be available to the dealer or distributor in case the insecticide has not been stored properly.
Hon'ble the Supreme Court, in the case of M/s Kisan Beej Bhandar, Abohar vs. Chief Agricultural Officers, Ferozepur and another reported as 1990 Supreme Court Cases (Crl.) 623, in para No.4, held as under :-
" The High Court took the view that by enacting sub- section (1) of Section 30 of the Act, Parliament had taken out the element of mens rea from consideration and, therefore, knowledge was not at all material. Appellant's counsel has argued that protection of sub-section (3) is available not only to prosecutions but also to every contravention of the Act and cancellation of licence for contravention of the Act is also a matter covered by sub- section (3). We are inclined to accept the submission and take the view that whether it is prosecution or contravention leading to cancellation, sub-section (3) applies. In that view of the matter, on the facts found that it was a full tin in a sealed condition, the liability arising out of misbranding was not of the appellant. Unless he had any other source of information about misbranding - and it has not been established - the appellant is entitled to the protection of sub-section (3). In the facts once the CRM No.28723 of 2010 (O&M) 5 appellant's contention that it was a sealed tin intact has been found, the burden that lay on him under the provisions of sub-section (3) had been satisfactorily discharged, even in the matter of considering the question of cancellation of licence and, therefore, his licence should not have been cancelled. We allow the appeal, reverse the order of the High Court and the authorities and restore the licence. The appeal is disposed of accordingly. No costs."
This Court, in the case of M/s Guru Nanak Pesticides, Nabha & Ors. vs. State of Punjab reported as 2010(1) RCR (Criminal) 30, held as under :-
" 6. Petitioner No.1 is the stockist; petitioners No.2 and 3 are its partners while petitioner Nos. 4 and 5 are the distributor. They are not the manufacturer of the relevant insecticide. There is clear-cut plea in the petition that they were selling the insecticide in the sealed container in the original form as obtained from the manufacturer and the sample was also taken from the original packing. This plea has not been controverted by the State. Thus, there remains no controversy that the impugned sample was obtained from the sealed containers lying in the premises of the firm and there is no material to indicate that the insecticide was not properly stored. Thus, the petitioners being the stockist/dealer/distributor, involved in the sale of CRM No.28723 of 2010 (O&M) 6 insecticides, cannot be held liable for misbranding of the insecticides and only the manufacturer would be liable. In this context reliance can be placed on the cases of M/s Kisan Beej Bhandar, Abohar v. Chief Agricultural Officers, Ferozepur 1990 Supreme Court Cases (Crl.) 623 and M/s Vimal And Co. Grain Market, Mullanpur v. State of Punjab, 2002(2) RCR (Criminal) 56 (P&H), followed in the case of Deepak Sharma & Ors. v. State of Punjab, 2002(2) RCR (Criminal) 24 and reliance can be safely placed on the case of M/s Punjab Beej Bhandar Bela & Anr. v. State of Punjab through Insecticide Inspector Ropar, 2008(1) RCR (Criminal) 998, wherein also this Court quashed the criminal proceedings against the licensed dealer."
Admittedly, the petitioner is not the manufacturer of the insecticides but the supplier. Hence, he cannot be held responsible for misbranding the insecticide, which was not manufactured by him. The complaint qua manufacturers is pending. There is nothing on record to suggest that the insecticide had not been properly stored by the petitioner before its supply. The petitioner being the supplier had no way of ascertaining that the insecticide in any way contravened any provision of the Act.
Accordingly, this petition is allowed. FIR No. 254 dated 29.10.2006 registered under Clause 19 (1) (a) of Fertilizer Control CRM No.28723 of 2010 (O&M) 7 Order, 1985 read with Section 12A of the Essential Commodities Act, 1955, Police station City Rajpura District Patiala (Annexure P-1) and all the consequential proceedings arising therefrom, qua the petitioner, are quashed.
(SABINA)
July 30, 2012 JUDGE
anita